BHOJAPPA GOUDA Vs. GURUBAI W/O SUBHAS DYAMAVVAGOL

JUDGEMENT

(1.) The unsuccessful defendants being aggrieved by the judgment and decree dated 31.01.2011 passed in O.S.No.3/2007 by the Senior Civil Judge and JMFC, Sindagi confirmed by the judgment and decree dated 07.07.2015 in R.A.No.54/2011 by the I Addl. District Judge, Vijayapur have filed this regular second appeal.

(2.) The parties are referred to with their rank before the trial court.

(3.) The original plaintiff Kashibai W/o Malakajappagouda Patil filed O.S.No.3/2007 against the original defendant Bhojappagouda @ Appasab S/o Gurushantappa Patil seeking a decree for possession of the Northern half portion of Sy.No.253 of Village Yankanchi from the defendant and for costs of the suit. It was the case of the plaintiff that the suit land namely Northern half of land bearing Sy.No.253 of Yankanchi is of her ownership and she is in possession and enjoyment of the same. She acquired the said land under registered gift deed from her grand mother in 1959. She has been in possession and enjoyment of the said property till 1986. During 1986 the defendant and his father Gurushantappa Patil falsely got entered their name by virtue of ME No.5217 stating that the plaintiffs has relinquished her share to the extent of half share in the suit land. The plaintiff challenged the said entry before the Deputy Comissioner, Vijayapur in R.T.A. AP.16/87-88. During the pendency of R.T.S. proceeding the defendant through his guardian filed O.S.No.154/1987 seeking permanent injunction initially with regard to the joint half share. In the said suit, the temporary injunction was granted by the trial Court, the present plaintiff challenged the same in M.A.No.53/1989. The said appeal was allowed and order of injunction was vacated. During the pendency of M.A.No.53/1989 again the defendant and his father in collusion with revenue officer got entered their names under M.E.No.6349. The plaintiff challenged the same before the Deputy Commissioner, Vijayapur in R.T.S. AP.27/93-94 in the mean time, the defendant approached the High Court in CRP against order passed in M.A.No.53/1989 wherein order of status-quo was passed. Subsequently, O.S.No.154/1987 came to be dismissed on 22.09.1995. The defendant herein preferred R.A.No.185/1995 against the dismissal of O.S.No.154/1987. In the said appeal, the Civil Court observed that the defendant has no title over the suit property, but he is able to prove his possession over the Northern half portion. Further, the Civil Court observed that the present plaintiff may seek possession of the Northern half portion from the defendant who is not in lawful possession. The plaintiff filed R.S.A.No.611/1997 before the High Court against the judgment in R.A.No.185/1995. The said RSA came to be dismissed on 05.10.1998 by upholding in judgment in R.A.No.185/1995 and further the High Court directed trial Court to dispose of if a suit for possession is filed within 18 months from the date of institution of suit. It is also held that plaintiff is the absolute owner of the suit land and the defendant has absolutely no right to remain in possession. Therefore, the plaintiff was constrained to file the present suit in O.S.No.3/2007 seeking possession of the suit property from the defendant. During the pendency of the suit, the plaintiff had executed a will dated 20.04.1998 in favour of her daughter Gurubai. It is seen that during the pendency of the suit, the original plaintiff Kashibai died and by virtue of the will Gurubai was impleaded as plaintiff No.1A to prosecute the suit.